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Judgment
Hon'Ble Shree Prakash Singh, J.
Since the matter is being decided on the legal issues, therefore, the notice to opposite party no. 2 is hereby dispensed with.
Heard Mr. Anand Dubey, Advocate assisted by Mr. Utkarsh Misra, Advocate and Mr. Abhishek, learned counsels for the applicant and Dr. Sushil Kumar Pandey, learned A.G.A. for the State and perused the record.
The present application has been filed with the prayer to quash the impugned order dated 22.05.2026 passed by Chief Judicial Magistrate, Gonda whereby applicant has been summoned under section 115(2), 352, 351(2), 324(2), 109(1) B.N.S. (Section 323, 504, 506, 426, 307 I.P.C.) in Criminal Case No. 35209 of 2025, (State Versus Akshay Singh & Ors.) arising out of Case Crime No. 148 of 2025. Police Station- Nawabganj. District- Gonda as well as all consequential proceedings arising out of the abovementioned case crime, in the interest of justice.
As per the version of the first information report, the allegations against the applicant including the other co-accused persons are that, in the night of 03-05-2025, at about 23.30 P.M., they were allegedly involved in breaking the wall of the house of the informant, while abusing and challenging the informant, an altercation took place, which resulted in causing the physical injuries to the informant.
Fact remains that after investigation, the chargesheet was filed against two accused persons namely, Akshay Singh and Shekhar Singh and the final report was submitted, in favour of the present applicant.
Contention put forth by learned counsel for the applicant is that the Investigating Officer filed the chargesheet against the two accused persons namely, Akshay Singh and Shekhar Singh for various offences/sections and the trial court after receiving the chargesheet took the cognizance of the offences under sections 115(2),351(2), 352,324(2) and 109(1) of the B.N.S. against the accused, Akshay Singh and under sections 115 (2),351(2) & 352 of the B.N.S., against the another accused, Shekhar Singh and summons were issued. He added that in respect with the present applicant, namely, Alpana Singh, the final report was submitted as after the investigation, no cogent or substantial evidence was found by the Investigating Officer and after submission of the final report by the Investigating Officer, the protest application was moved and the same was allowed vide the order impugned dated 22-05-2026, whereby the cognizance of the offence under sections 115(2),351(2), 352,324(2) and 109(1) of the B.N.S. has been taken by the trial court, against the present applicant including, one of the co-accused, Shekhar Singh.
Further contention of learned counsel for the applicant is that the trial court had already taken cognizance of offence so far as the co-accused Shekhar Singh in Case Crime No. 148 of 2025 is concerned, but, again the cognizance has been taken of the offences, which is impermissible under the law. He added that so far as the accused, Shekhar Singh is concerned, the cognizance has earlier been taken under sections under sections 115 (2),351(2) & 352 of the B.N.S., vide the order dated 17-11-2025 and he was summoned for the aforesaid offences, whereas again the cognizance has been taken and the applicant has been summoned while adding section 109 (1) of the B.N.S., alongwith other offences which is apparently erroneous.
Concluding his arguments, he submitted that the order impugned dated 22-05-2026 is unlawful and is against the settled proposition of law, thus, the same may be set aside.
Per contra, Dr. Sushil Kumar Pandey, learned A.G.A. appearing for the State has tried to substantiate his argument that initially the chargesheet was filed against two accused persons namely, Akshay Singh and Shekhar Singh for the offences, under the B.N.S. and the cognizance has been taken by the trial court. He argued that the order dated 17-11-2025 is lawful and intact. He submitted that the order impugned dated 22-05-2026, infact is erroneous to the extent of taking re-cognizance of the offences against the applicant, including one of the co-accused namely Shekhar Singh, against whom the cognizance for the offences under sections 115 (2),351(2) & 352 of the B.N.S. had already been taken, vide order dated 17-11-2025.
Having heard learned counsels for the parties and after perusal of the records, it transpires that the order dated 22-05-2026, passed by the Chief Judicial Magistrate, Gonda is under challenge in this application, whereupon, the cognizance of the offence under sections 115(2),351(2), 352,324(2) and 109(1) of the B.N.S. has been taken and the applicant, Alpana Singh and Shekhar Singh, have been summoned.
When this court examines the order impugned in facts and law, it reveals that the first information report has been lodged against three accused persons namely, Akshay Singh, Shekhar Singh and Alpana Singh, the present applicant herein. Initially the chargesheet was filed against the two accused persons namely, Akshay Singh and Shekhar Singh, before the trial court, wherein the trial court has taken cognizance of the offences so far as Akshay Singh is concerned, under sections 115(2),351(2), 352,324(2) and 109(1) of the B.N.S. and against Shekhar Singh, for the offences under sections 115 (2),351(2) & 352 of the B.N.S.
In respect with the present applicant, the final report was submitted and a protest application was moved thereof, which was decided and the protest application was allowed vide the order impugned dated 22-05-2026. Now, the controversy starts from this stage that whether the re-cognizance can be taken, for the offences, for which the cognizance has already been taken, by reviewing or modifying the first cognizance order. Secondly, whether the learned Magistrate can add or subtract the offence/charge against an accused, who has been summoned and the cognizance has been taken and whether a protest petition filed after an order of cognizance, can be used as modus to reopen the earlier cognizance order or to review it.
In view of the aforesaid submissions and discussions, the following questions have arisen for consideration :-
Whether the Magistrate has power to review the order of cognizance, passed in the same case crime number ?
Whether the trial court can add or subtract the section while passing the order of cognizance, and summoning ?
Whether on a protest application, filed after the cognizance is taken against some of the accused persons, in the same case crime number for taking cognizance afresh, against the additional accused persons ?
Now this court examines the matter in it's entirety and it is apparent from the factual matrix of the case that the first information report was initially lodged against three accused persons namely, Akshay Singh, Shekhar Singh and Alpana Singh, whereafter, the chargeshgeet was filed against two accused persons and the present applicant namely, Alpana Singh, was not found involved and therefore, in respect with her, the final report was submitted before the trial court. After the final report was submitted, the protest application was moved by the complainant, whereafter, the same was allowed vide the order impugned dated 22-05-2026. The relevant part of the order dated 22-05-2026, is extracted hereinunder :-
आदेश
"आवेदक/वादी मुकदमा िवशाल िसह उफर् छोटू की ओर से प्रस्तु त प्रा थर्नाप त्रिदनांिकत 30.01.2026 स्वी कार िकया जाता है। अिभयुक्त गण अल्प ना िसह व शेखर िसह को अन्त गर्त धारा-115(2),352,351(2), 324 (2), 109 (1) बी०एन०एस० के अन्त गर्त धारा-210 (1) (बी) बी०एन०एस०एस० में अपराध का प्रसंज्ञा न लेते हुए िवचारण हेतु तलब िकया जाता है। अिभयुक्त गण के िव रूद्धसम्म न जारी हो। पत्रा वली वास्ते हािजरी मुिल्ज म िदनांक 06.07.2026 को पेश हो।"
It is noteworthy that vide the order dated 22-05-2026, the cognizance of the offence have been taken and the applicant as well as the co-accused Shekhar Singh, were summoned under sections 115(2),352,351(2),324(2) and 109(1) of the B.N.S. whereas, vide order dated 17-11-2025, passed by the Chief Judicial Magistrate, Gonda, the cognizance has already been taken against Shekhar Singh as well as Akshay Singh, co-accused persons for offences under the B.N.S. The earlier order dated 17-11-2025, by virtue of which the cognizance has been taken and the accused persons, Akshay Singh and Shekhar Singh have been summoned, is given as follows :-
"िदनांक-17.11.2025 आज उपरो क्त प्रकरण में आरोपप त्र प्रा प्त हो कर प्रसंज्ञा न हेतु प्रस्तु त िकया गया। आरोप पत्र , केस डायरी व अन्य पुिलस प्रपत्रों का सम्य क् अवलोकन िकया गया। पुिलस प्रपत्रों के पिरशीलन से अिभयुक्त अक्ष य िसह के िवरु द्धअन्त गर्त धारा-115(2),351 (2),352,324 (2), 109 (1) बीएनएस तथा अिभयुक्त शेखर िसह के िवरु द्रअन्त गर्त धारा-115(2),351 (2), 352 बीएनएस अपराध का प्रसज्ञा न िलए जाने हेतु आधार पयार् प्त है। तद् अनु रूप अपराध का प्रसज्ञा न िलया जाता है। आरोप पत्र दजर् रिज स्ट र हो। अिभयुक्त गण उपरो क्तजिरए सम्म न िदनांक 12.01.2026 के िलए तलब हों ।"
From bare perusal of both the cognizance orders, in the same case crime number i.e. Case Crime No. 148 of 2025, it reveals that the trial court has taken cognizance of the offences against Shekhar Singh while deciding the protest application, filed against the final report, submitted in favour of the present applicant.
It appears that the trial court while deciding the protest application, has reconsidered the earlier order of cognizance dated 17-11-2025, wherein the cognizance of the offences was taken and the accused namely, Akshay Singh and Shekhar Singh, were summoned.
So far as the accused, Shekhar Singh is concerned, the cognizance against him was taken under sections 115(2),352,351(2) of the B.N.S., whereas after reopening of the arena of consideration of taking cognizance against the accused, Shekhar Singh, sections 324(2) & 109(1) of the B.N.S. have also been added.
It is trite law in this regard that the cognizance can only be taken once and re-cognizance is not permissible as the same would amount to review of the order of cognizance.
Hon'ble Apex Court in the case of Ramakant Singh And Others Vs State of Jharkhand and Another reported in 2023(15) SCC 429, has observed in paragraph nos. 10 & 11, as follows;
"10.We have perused the order dated 9-4-2009. The order was passed on the charge-sheet dated 31-3-2009 filed by CID. The order takes cognizance only as against Gupteshwar Singh. Surprisingly, a protest petition against the said order was entertained by the learned Chief Judicial Magistrate and he proceeded to pass the impugned order on 3-11-2009 taking cognizance against the present appellants. Such a course was not permissible as it was not open for the learned Chief Judicial Magistrate to entertain a protest petition against his earlier order of taking cognizance. The order dated 3-11-2009, amounts to modification of the earlier order dated 9-4-2009, which was not permissible as there is no power conferred on the learned Judicial Magistrate to modify the earlier order of taking cognizance.
11.These legal aspects have been clearly overlooked by the High Court. By referring to the decision of this Court in Nupur Talwar [Nupur Talwar v. CBI, (2012) 2 SCC 188 : (2012) 1 SCC (Cri) 711] , the High Court observed that it is well-settled that once protest petition is filed, depending upon the facts of the case, the Court can proceed on the basis of that protest petition and follow the procedure prescribed under Sections 200 and 202CrPC. In this case, the Court was dealing with a completely different case where protest petition was filed against an order taking cognizance."
Further, Hon'ble Delhi High Court in the case of Mrs. Amrita Jain Vs State of NCT, Delhi & Another (Crl. M.C. 80 of 2025 & Crl.M.A. No. 499 of 2025 decided on 01-09-2025) while reiterating the law laid down by the Hon'ble Apex Court in the case of Ramakant Singh (Supra) has observed as follows :-
"18.It is settled law that cognizance can only be taken once and the aforesaid judgment makes it clear that it is not open to the learned Magistrate to take re-cognizance upon filing of protest petition as the same would amount to review of the prior order."
So long as the present case is concerned, the protest application was pending and the same was decided vide order impugned dated 22-05-2026, whereas for two other co-accused persons, the cognizance was taken on 17-11-2025 and they were summoned and in the subsequent order, the protest application has been decided and again the cognizance is taken under the added section against the co-accused, Shekhar Singh and the present applicant, which infact was not permissible as per the settled proposition of law discussed hereinabove.
It is also of worth consideration that the protest application/petition after an order of cognizance passed by the Magistrate, cannot be used as mechanism to review or reopen the earlier cognizance order and therefore, this would not empower the Magistrate to take cognizance afresh, against the additional accused persons for additional offences.
It is apt to say that by the impugned order, learned trial court has not only reopened/reviewed the earlier cognizance order, while deciding the protest petition, but, at the same time, the additional sections have been added. The law is long settled in this regard that the additional accused can be summoned, even if the chargesheet is not filed against such person, at the time of passing of order of cognizance but the section cannot be added or subtracted.
Hon'ble Apex Court in the case of State of Gujarat Versus Girish Radhakrishnan Varde reported in (2014) 3 SCC 659 in paragraph nos. 14 & 15 of the said Judgment has observed as follows :-
"14.But if a case is registered by the police based on the FIR registered at the police station under Section 154 CrPC and not by way of a complaint under Section 190(1)(a) CrPC before the Magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the charge-sheet unless of course a complaint before the Magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the charge-sheet, the matter goes to the Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police.
15.The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet."
In view of the aforesaid submissions and discussions, the questions framed as above, are answered as follows :-
The trial court cannot review the order of cognizance and further it is not open to take recognizance.
It is not open to the trial court to add or subtract the sections at the time of taking cognizance of the offences and issuing summons to the accused persons.
Once the cognizance is taken, the same cannot be reviewed while deciding the protest application at the subsequent stage.
Consequently, the impugned order dated 22-05-2026 is hereby set aside.
The application is allowed accordingly.
The trial court is directed to proceed in accordance with law.